State v. Glaze

[Cite as State v. Glaze, 

.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
          Plaintiff-Appellee                      :   Appellate Case No. 29431
                                                  :
 v.                                               :   Trial Court Case No. 2021-CR-2855
                                                  :
 CARMELLO GLAZE                                   :   (Criminal Appeal from
                                                  :   Common Pleas Court)
          Defendant-Appellant                     :
                                                  :

                                             ...........

                                            OPINION

                          Rendered on the 16th day of December, 2022.

                                             ...........

MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, 301 West Third Street,
5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

VICTORIA FERRY, Atty. Reg. No. 0101094, Assistant Public Defender, Office of the Ohio
Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215
       Attorney for Defendant-Appellant

                                            .............

EPLEY, J.
                                                                                        -2-


       {¶ 1} Defendant-Appellant Carmello Glaze appeals from his convictions in the

Montgomery County Court of Common Pleas after he pled guilty to one count of

involuntary manslaughter with an attendant firearm specification, one count of discharge

of a firearm on or near a prohibited premises, and one count of having weapons while

under disability. He was then sentenced to 18 to 23½ years in prison. For the reasons

that follow, the judgment of the trial court will be affirmed.

       I.     Facts and Procedural History

       {¶ 2} On the evening of April 27, 2021, Glaze (who was a juvenile at the time) shot

and killed Kirby Shoffner. Glaze was quickly found, arrested, and charged as a juvenile.

Following his bind over to adult court, Glaze was indicted on two counts of murder, two

counts of felonious assault, one count of discharge of a firearm on or near a prohibited

premises, and one count of having weapons while under disability. The murder and

felonious assault charges carried firearm specifications.

       {¶ 3} After negotiations with the State, Glaze agreed to plead guilty by way of bill

of information to a single count of involuntary manslaughter with a firearm specification,

as well as to the previously-indicted charges of discharge of a firearm on or near a

prohibited premises and having weapons while under disability. In exchange for the guilty

pleas, the State agreed to dismiss the remaining counts and specifications. Additionally,

the parties agreed to an aggregate sentence of 18 to 23½ years in prison.

       {¶ 4} On February 23, 2022, the trial court accepted Glaze’s plea and proceeded

to disposition where it sentenced Glaze to 11 to 16½ years for involuntary manslaughter,

a consecutive three years for the firearm specification, and consecutive two-year terms
                                                                                             -3-


for both discharge of a firearm on or near a prohibited premises and having weapons

while under disability. Glaze was ordered to serve 18 to 23½ years in prison. He was also

ordered to pay $3,000 in restitution. Trial counsel did not object to the sentence, which

corresponded with the agreement of the parties.

       {¶ 5} On March 24, 2022, Glaze filed this appeal, raising two assignments of error.

We will address them together.

       II.    Reagan Tokes Act

       {¶ 6} In his first assignment of error, Glaze argues that the indefinite sentencing

scheme found in the Reagan Tokes Act violates his constitutional right to due process,

his right to trial by jury, and the separation of powers doctrine. In his second assignment

of error, he asserts that his trial counsel was ineffective for failing to object to the alleged

constitutional violations. Both arguments are asymmetrical with precedent.

       {¶ 7} In 2018, the Ohio legislature enacted Senate Bill 201 (S.B. 201), otherwise

known as the Reagan Tokes Act. S.B. 201 provides indefinite sentencing for first and

second-degree felonies that did not already carry a life sentence. The law requires that

the sentencing court impose an indefinite sentence with a minimum term selected by the

court from the statutory range, and then an accompanying maximum term (often 50% of

the minimum), which is determined by a statutory formula under R.C. 2929.144.

       {¶ 8} Another feature of S.B. 201 is that it gives the Ohio Department of

Rehabilitation and Corrections (ODRC) the ability to hold a prisoner past the minimum

term of the sentence. The legislature, however, has limited that authority by creating a

statutory presumption that the prisoner will be released once the minimum term has been
                                                                                           -4-


completed. R.C. 2967.271(B). The ODRC may rebut that presumption, though, if it

determines, after a hearing, that among other things, the prisoner has violated prison

rules or the law (thereby demonstrating that the prisoner has not been rehabilitated and

poses a threat to society), the prisoner has been placed in restrictive housing in the past

year, or is classified as a security level of three or above. R.C. 2967.271(C). If the ODRC

successfully rebuts the presumption of release, the prisoner remains in custody for a

period not to exceed the maximum sentence. R.C. 2967.271(D)(1).

       {¶ 9} Glaze contends that the Reagan Tokes Act violates his constitutional rights.

Upon review, however, we find his constitutional challenges to the law to be

unpersuasive. Even if we ignore trial counsel’s failure to raise the issues below, we still

see no violations of Glaze’s rights to due process, trial by jury, or the separation of powers

doctrine. This Court has, on at least a dozen occasions, examined and rejected similar

arguments, finding no constitutional problems. See State v. Boldman, 2d Dist. Champaign

No. 2022-CA-5, 

; State v. Leamman, 2d Dist. Champaign No. 2021-CA-

30, 

; State v. Hall, 

, 

 (2d

Dist.); State v. Fletcher, 2d Dist. Montgomery Nos. 28829, 28830, 

; State

v. Ross, 2d Dist. Montgomery No. 28875, 

; State v. Keith, 2d Dist.

Montgomery No. 28805, 

; State v. Baker, 2d Dist. Montgomery No. 28782,

; State v. Sinkhorn, 2d Dist. Clark No. 2019-CA-79, 2020-Ohio-

5359; State v. Wallace, 2d Dist. Clark No. 2020-CA-3, 

; State v. Leet, 2d

Dist. Montgomery No. 28670, 

; State v. Ferguson, 2d Dist. Montgomery

No. 28644, 

; State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-
                                                                                         -5-


Ohio-4150. As noted in Leamman, “[w]e need not continue plowing the same ground

regarding the constitutionality of the Reagan Tokes Act.” Leamman at ¶ 12.

       {¶ 10} Based on this court’s well-established precedents, we reject Glaze’s

argument that the Regan Tokes Act violates his right to due process, right to trial by jury,

and the separation of powers doctrine. Similarly, because of that holding, we conclude

that trial counsel did not provide ineffective assistance by failing to object to Glaze’s

sentence. Therefore, the first and second assignments of error are overruled.

       III.   Conclusion

       {¶ 11} The judgment of the trial court will be affirmed.

                                      .............



TUCKER, P.J. and WELBAUM, J., concur.


Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
Victoria Ferry
Hon. Richard S. Skelton